When you’re buying a house and applying for a
mortgage, the conveyancing process can sometimes throw up all sorts of surprises.
Some
of these might seem like insignificant issues to both the buyer and the
seller, but they can throw a real spanner in the works when it comes to
persuading the mortgage lender to release the funds.
Indemnity
insurance - sometimes called legal indemnity insurance, or title
indemnity insurance - can come to the rescue in such cases, satisfying
the lender (and the buyer) that it’s ok to proceed.
What’s indemnity insurance?
Indemnity
insurance is used during conveyancing transactions to cover some sort
of legal defect with the property which can’t be resolved swiftly, or at
all.
As an alternative to rectifying the defect, an indemnity
insurance policy can be taken out, particularly when the buyer is
otherwise satisfied with the property and simply wants to make sure
their mortgage goes through smoothly.
The Council of Mortgage Lenders’ (CML) handbook for
conveyancers
says: “You must effect an indemnity insurance policy whenever the
Lenders' Handbook identifies that this is an acceptable or required
course to us to ensure that the property has a good and marketable title
at completion.”
The issues covered by indemnity insurance usually
have a very low risk of causing any actual loss - but if they did cause
a loss, it would be significant.
Yet buyers should always keep in
mind that the indemnity policy doesn’t actually remedy the defect - it
simply provides financial compensation in the event of the defect
causing a loss.
Who’s covered by legal indemnity insurance?
Legal
indemnity insurance covers the buyer and the mortgage lender in the
event of any loss of value on the property as a result of the defect.
Unlike
other types of insurance which have an annual premium, indemnity
insurance is paid as a one-off, is transferred to successors in title
and lasts for the life of the property.
Yet it’s usually the seller who pays for the policy.
Most policies cost in the region of a few hundred pounds, so most sellers will pay this rather than see a sale fall through.
However,
if the seller refuses to pay, the buyer may need to negotiate with them
over who covers the cost, or else walk away from the sale.
Defects covered by indemnity insurance
Legal
indemnity insurance could extend to a whole range of defects, with
planning permission and building regulation issues being the most
common.
Planning permission/building regulations
When
you’re buying a property, your conveyancer has a responsibility to make
sure all relevant planning permission and building regulations have been
obtained.
If a property has been built, altered or extended without building
regulations or planning permission approval, then the local authority
could take action to ask for it to be reversed or remedied.
However,
in most cases there's a four-year limit on the local authority issuing
an enforcement notice, so if the work was carried out before this the
risk of any action is remote.
Because of the low risk involved,
indemnity insurance is often more appropriate than the seller trying to
retrospectively satisfy planning conditions in the case of things like
loft conversions and extensions.
However, indemnity insurance is
no guarantee that the work carried out is safe or satisfactory, so a
prudent buyer should still consider arranging surveys and engineer
reports for their own peace of mind.
Restrictive covenants
Restrictive
covenants are provisions written in the deeds of a property which limit
its use in some way. On residential properties that could be anything
from an agreement not to erect any outbuildings, to not keeping chickens
in the garden.
If you’re looking to buy a house where a covenant has already been
broken – for instance an extension has been built in a position where
it’s forbidden – a neighbour or other interested party could, in theory,
insist that it’s removed.
However, if the breach has been in
existence for some time, indemnity insurance may be a solution to allow a
house sale to go through.
There may be conditions to the
insurance, such as no dispute being currently ongoing, or the breach
having been committed a certain time ago.
Absence of easement
During
the conveyancing process it might transpire that the property is
accessed by land where the property hasn’t been granted a right of
easement – the right to get to the property this way.
Indemnity
insurance for an absence of easement will cover the cost of establishing
easement, or the loss of value in the event access ever becomes an
issue due to this lack of permission.
Again, the chances of this
happening are usually remote if the property has had access that way for
many years, or if the owner of the access land is unknown.
Chancel repair
Sometimes during the searches, the conveyancer will find that the property is liable for
chancel repair.
This means that the owner of the property could be collared for repair
costs to their local church and there are horror stories of this running
to thousands of pounds.
In practice, however, it’s rarely
enforced, so an indemnity insurance policy can offer a cost-effective
solution if it’s a sticking point during a home sale.